Punch v. Vict. Cnty Jail Med. Dep't

• Docket Number: Civil Action 6:22-CV-00022
• Decision Date: 07 February 2023
• Parties: LEROY PUNCH, Plaintiff, v. VICTORIA CNTY. JAIL MEDICAL DEP'T, et al., Defendants.
• Court: U.S. District Court — Southern District of Texas

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LEROY PUNCH, Plaintiff,
v.
VICTORIA CNTY. JAIL MEDICAL DEP'T, et al., Defendants.

Civil Action No. 6:22-CV-00022

United States District Court, S.D. Texas, Victoria Division

February 7, 2023

MEMORANDUM AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

MITCHEL NEUROCK, United States Magistrate Judge

Plaintiff Leroy Punch, a prisoner appearing pro se and in forma pauperis, has filed this prisoner civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff's case is subject to screening pursuant to the Prison Litigation Reform Act. See 42 U.S.C. § 1997e(c);^[1] 28 U.S.C. §§ 1915(e)(2), 1915A. For purposes of screening and pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b)(1), the undersigned recommends that Plaintiff's § 1983 claims be DISMISSED WITHOUT PREJUDICE. The undersigned also recommends that Plaintiff's second request for appointment of counsel (Doc. No. 24) be DENIED as moot.

A. Jurisdiction.

The Court has federal question jurisdiction pursuant to 28 U.S.C. § 1331. This case has been referred to the undersigned magistrate judge for case management and making recommendations on dispositive motions pursuant to 28 U.S.C. § 636.

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B. Proceedings.

Plaintiff is a state prisoner currently housed in the Victoria County Jail in Victoria, Texas. This facility lies within the Victoria Division of the Southern District of Texas. Plaintiff is a pretrial detainee. See Case No. 21-01-32610-D & Case No. 21-11-33301-D found at Victoria County Records Inquiry, Criminal Case Records, Search: Last name-Punch, odyssey.vctx.org/Search.aspx (last visited Feb. 4, 2023).

Plaintiff filed this action on June 23, 2022. (Doc. No. 1.) He amended his complaint on August 1, 2022. (Doc. No. 7.) He also submitted a rambling unsworn declaration couched as a letter to the Attorney General of the United States, in which he claimed that he was the subject of what he calls an “illegal brain computer interface experiment.” (Doc. No. 9-1, p. 1.) After granting Plaintiff leave to proceed in forma pauperis, see Doc. No. 13, the Court consolidated this case with another § 1983 action in which Plaintiff lodged nearly identical claims against many of the same defendants. See Doc. No. 17; Punch v. Marr, No. 6:22-cv-00031 (S.D. Tex.). Plaintiff submitted a supplement to his amended complaint, along with an additional memorandum. (Doc. Nos. 16, 18.)

The undersigned then directed Plaintiff to provide a more definite statement explaining his claims. (Doc. No. 19.) In response, Plaintiff submitted a four-page statement alleging, among other things, that his poetry was being stolen directly from his mind through a “brain computer interface.” (Doc. No. 20, p. 1.) Plaintiff also submitted a more focused memorandum with additional details about his § 1983 claims and named 27 individual defendants. (Doc. No. 22.)^[2]

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Plaintiff's more definite statement repeatedly references the “brain computer interface.” See Doc. No. 22. This concept appears to be tied to a belief by Plaintiff that people - some of whom are unidentified - are trying to control his mind. (Doc. No. 9-1, p. 1.) Plaintiff states that he is “at the mercy and mental [instability] of a mind mob. In this case people not in law [e]nforcement here and in free society also key members of the Victoria County Jails Administrations in this Psyop (Psychological Operations) in the guise of a [b]rain [c]omputer [i]nterface [e]xperiment.” Id. at 2. Plaintiff believes the “control” is coming from the mind mobs' “technology that was illegally created and still attached to my I-phone and I-watch that were taken from me upon arrest, also not given back to me and may have been illegally appropriated.” Id. Plaintiff does not claim that the “brain computer interface” experiment was initiated at the jail; rather, he believes that it was done to him prior to his incarceration. Id. at 3. Despite these descriptions of the “brain computer interface,” and other somewhat meandering statements,^[3] Plaintiff does sufficiently articulate his claims in the more definite statement, enough to enable the undersigned's screening of his case. Not all of Plaintiff's claims are based on the “brain computer interface”; those that are, however, are obviously delusional, and the undersigned concludes that those claims are frivolous. These claims are identified where relevant throughout this memorandum.

Liberally construed, Plaintiff alleges four main claims: (1) religious discrimination; (2) inadequate medical care in violation of the Fourteenth Amendment; (3) retaliation; and (4) “hate

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crimes” and harassment. See Haines v. Kerner, 404 U.S. 519, 520 (1972). No process has been issued in this case. The undersigned is satisfied that Plaintiff has pleaded his best case. The case is now ripe for screening.

Plaintiff includes a statement in his unsworn declaration/letter to the Attorney General that he was found incompetent to stand trial in his state criminal case. (Doc. No. 9-1, p. 1.) A review of the docket sheet for Plaintiff's pending state criminal case reveals an entry reflecting that Plaintiff was indeed found incompetent to stand trial. This finding followed an examination of Plaintiff. Plaintiff's criminal case has apparently been stayed while further examination or treatment occurs. Additional discussion of this issue appears below.

C. Legal standard for screening.

When a prisoner seeks to proceed in forma pauperis, the court shall evaluate the complaint and dismiss it without service of process if the court finds the complaint frivolous, malicious, fails to state a claim upon which relief can be granted, or seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A; see 28 U.S.C. § 1915(e)(2)(B) (providing that a court shall review an in forma pauperis complaint as soon as practicable and dismiss it if it is frivolous or malicious, fails to state a claim upon which relief may be granted, or seeks monetary relief from an immune defendant). A claim is frivolous if it has no arguable basis in law or fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989). A claim has no arguable basis in law if it is based on an indisputably meritless legal theory, “such as if the complaint alleges the violation of a legal interest which clearly does not exist.” Davis v. Scott, 157 F.3d 1003, 1005 (5th Cir. 1998) (citing McCormick v. Stalder, 105 F.3d 1059, 1061 (5th Cir. 1997)). A claim has no arguable basis in fact if, “after providing the plaintiff the opportunity to present

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additional facts when necessary, the facts alleged are clearly baseless.” Talib v. Gilley, 138 F.3d 211, 213 (5th Cir. 1998) (citing Denton v. Hernandez, 504 U.S. 25, 32-33 (1992)).

Additionally, a plaintiff's suit may be dismissed as frivolous pursuant to § 1915(e)(2)(B) if it makes factual allegations that are “fanciful,” “fantastic,” or “delusional.” Denton, 504 U.S. at 32-33 (quoting Neitzke, 490 U.S. at 325, 328).^[4]

“In analyzing the complaint, [the court] will accept all well-pleaded facts as true, viewing them in the light most favorable to the plaintiff.” Jones v. Greninger, 188 F.3d 322, 324 (5th Cir. 1999) (per curiam) (citations omitted). “The issue is not whether the plaintiff will ultimately prevail, but whether he is entitled to offer evidence to support his claim. Thus, “the court should not dismiss the claim unless the plaintiff would not be entitled to relief under any set of facts or any possible theory that he could prove consistent with the allegations in the complaint.” Id. (citing Vander Zee v. Reno, 73 F.3d 1365, 1368 (5th Cir. 1996)). “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). A plaintiff must allege sufficient facts in support of its legal conclusions that give rise to a reasonable inference that the defendant is liable for the misconduct alleged. Id. (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 556 (2007)). The factual allegations must raise the plaintiff's claim for relief above the level of mere speculation. Twombly, 550 U.S. at 555. As long as the complaint, taken as a whole, gives rise to a plausible inference of actionable conduct, the plaintiff's claim should not be dismissed. Id. Furthermore, as Plaintiff proceeds pro se, the Court construes his complaint liberally in his favor. See Oliver v. Scott, 276 F.3d 736, 740 (5th Cir. 2002) (citing Haines, 404 U.S. at 520).

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D. Federal Rule of Civil Procedure 17(c)(2).

The docket sheet in Plaintiff's pending state criminal case indicates that Plaintiff has been found incompetent to stand trial. His criminal case appears to be indefinitely postponed. The undersigned takes judicial notice of this fact. See Case No. 21-01-32610-D & Case No. 21-11-33301-D, found at Victoria County Records Inquiry, Criminal Case Records, http://odyssey.vctx.org/CaseDetail.aspx?CaseID=2206394 (last visited Jan. 31, 2023); see also Fed. R. Evid. 201(c)(1). Plaintiff mentions this finding in his filings. See Doc. No. 9-1, p. 1.

The docket sheet in Plaintiff's criminal case reflects that an examination was ordered and that a report was received. See Case No. 21-01-32610-D, found at Victoria County Records Inquiry, Criminal Case Records, http://odyssey.vctx.org/CaseDetail.aspx?CaseID=2206394 (last visited Feb. 7, 2023). It appears that an incompetency trial was conducted, resulting in a finding that Plaintiff was incompetent to stand trial. See id. Plaintiff's incompetency finding, then, means that a court has determined that he does not have “sufficient present ability to consult with [his] lawyer with a reasonable degree of rational understanding” or “a rational as well as factual understanding of the proceedings against [him].” See Tex. Code Crim. Proc. art. 46B.003(a)(1)-(2).^[5]

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Federal Rule of Civil Procedure 17(c)(2) provides that the court “must appoint a guardian ad...